This is a dispute between Mid States Concrete Industries and Laborers Local Union
No. 464 and
it arises out of discharges of two employees E. Chavez and C. Tankersley. Tankersley was
discharged
from his employment on December 18, 2012 and Chavez on December 10, 2012. Timely
grievances were
filed and the matters were referred to the Wisconsin Employment Relations Commission for
arbitration on
January 7, 2013. The undersigned was appointed and a hearing was held on February
7, 2013. The
parties agreed to hold the hearing on one day although the two grievances were heard
separately. The
record was closed following the hearing and matter is now ripe for decision.

AWARD

Introduction

Mid-States manufactures and installs pre-cast concrete structural components which
are trucked
to sites where they are installed in the form of beams, columns and wall panels forming
buildings. The work
is performed by two different groups of employees. One group manufactures the concrete
product and
the second group consists of field crews that install the product. The two disputes which are
addressed
here concern the manufacturing employees who are based at the Company's facility in South
Beloit, Illinois.

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The labor agreement between the Union and the Company provides that the employer
may
"discharge any employee for good cause." The agreement also provides that there must be at
least one
warning prior to discharge except in limited enumerated cases. One of those exceptions is
contained in
Article IX of the agreement and provides for discharge without warning in cases of:

"9. Blatant disregard for safety likely to cause serious injury."

For purposes of this arbitration proceeding the Union has conceded that in both cases
the conduct
of the grievants requires some discipline. Accordingly the parties agreed to the following
statement of issue:

Was discharge the appropriate penalty for the conduct engaged in by the
grievant
and if not what discipline should be imposed?

Each of the grievants in this matter were discharged for violating Rule #9. Neither
had received
prior written warnings and neither had any prior disciplinary record.

Safety Enforcement

Several years prior to this matter arising the Company launched a significant effort to
improve safety
throughout its operation. Management was motivated by a recent history of significant
injuries as well as
what they described as "massive" expenditures for workers compensation. They launched a
comprehensive effort involving training, audits, employee meetings, as well as hiring a
full-time safety
director. Enforcement of the new standards was strict. A number of management personnel
who were
not fully supportive were terminated. From 2010 through February of 2012 two relatively
long term
employees from this bargaining unit and one from the bargaining unit representing field
employees were
discharged for singular safety violations. Certainly the discharges at the bargaining unit level
as well as in
management sent the message that the Company was very serious about enforcing the safety
standards.
None of the bargaining unit discharges were grieved by the respective labor
organizations.(1)

The
circumstances in the cases of the individual employees here are relatively clear cut.

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Tankersley Termination

This employee was actually involved in separate incidents on successive days. By
way of
background this employee had previously been injured in an industrial accident in 2009. He
had suffered
extensive injury as well as a lengthy recovery. On December 17, 2012, he loaded a
container on the back
of a flatbed trailer. He was required to shrink wrap the container but had forgotten to do so.
Rather than
remove the pallet sized container with a fork lift he chose to shrink wrap the container while
it was on the
flatbed truck. This alone would not have been an issue except that the truck was missing a
number of
planks down the center of the bed. As a result the employee was shrink wrapping a large
container while
moving about on the bed of a truck which had a large gaping hole in its bed. The correct
action would have
been to remove the container to ground for shrink wrapping. A supervisor saw the problem
and directed
Tankersley to get down off the trailer.

The next day, Tankersley was responsible for filling a metal basket with equipment to
be loaded
on a truck. The basket was raised by use of a cable on which a 300-pound pulley was
attached. The
employee hooked the ring on the pulley to one fork on a fork lift and raised it to its full
height. He then
proceeded to load the basket which necessitated his working under the fork holding the
pulley, which was
very near the tip of the fork. Had the pulley come off the fork and fallen on the employee it
would likely
have resulted in his death.

The Company had two specific written "Safety Alerts" addressing the dangers
inherent in the action
Tankersley had engaged in. The "Safety Alerts" were provided to employees and included
training
discussions. Both were issued less than six months before the incident. Similar training had
been provided
regarding the hazards created by damaged beds on truck trailers. Following these two
incidents Tankersley
was discharged after an investigation by the Company. He was permitted to explain his
actions as to the
shrink wrap issue. As to the fork lift issue Tankersley denied working directly under the
forklift. The
employer produced two witnesses, one of whom was in the bargaining unit, that observed
Tankersley
working directly under the overhanging pulley. Based on that testimony, I am satisfied that
he did in fact
engage in an unsafe practice as to the fork lift with a clear disregard for the potential for
serious injury to
himself.

Chavez Termination

This employee was on a truck-like piece of equipment identified as the Tucker and
was working
on the second shift. He had another employee in the Tucker with him and a second
employee on a platform
above him on the next floor level. Chavez jumped up on the top cab of the truck in order to
communicate
with the employee on the higher floor. This created an immediate safety hazard for Chavez.
He could have
fallen off the cab roof, a fall of eleven feet or he could fallen into an active auger which
would have resulted
in his death. Chavez clearly understood that what he did was unsafe. He asserted that he
was not allowed
to present

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an explanation but the record reflected that he was given the opportunity to tell his side
of the story. In fact
his explanation itself reflected a violation of the lockout tag out procedure at the Company.
Furthermore
Chavez had the additional bad luck of being seen (and photographed) by the Human
Resources manager
while in the precarious position on top of the truck cab.

In retrospect Chavez' action was an attempt to shortcut the process. He should have
left the truck
and walked up the stairs to address the employee. That would have been the safe course of
action. Rather
than take the extra time the employee chose to place himself in a personally dangerous
situation. On
December 10, 2012 Chavez was terminated for violating Rule #9.

Level of Discipline

In both cases the grievants violated safety standards in a manner that was likely to
"cause serious
injury". Neither was motivated by ill will. Both the employees were attempting to "cut
corners" in the
interest of completing the tasks at hand. Employees typically do not violate safety standards
with the
intention of harming their employer. Often they are motivated by an attempt to increase
production or at
worst make their work life easier. Unlike discipline imposed by employers for employee
misconduct like
absenteeism, tardiness, fighting or theft, safety rule violations primarily imperil the employee
with no direct
harm to the employer unless, of course, injury results. Discharging an employee for
violating safety rules
where no injuries occur presents a difficult situation for employers. On the other hand lax
enforcement or
enforcement only when injury occurs does not result in changes in behavior. If the employer
is truly
motivated to change behavior, strict enforcement of all violations is a necessary course to
follow. It is
however a course fraught with downside risk for the employer, as demonstrated here.
Otherwise excellent
employees must be terminated even for short term lapses in judgment. Grievant Chavez'
circumstances are
illustrative.

Chavez, a fifteen-year employee who had worked his way to a position as lead
foreman had
provided assistance to the Company in a variety of ways. He was considered a valuable and
productive
employee and was fully engaged in the safety program. The Company has sacrificed that
experience and
ability in the interest of uniform enforcement of its safety standards. It has made the
business judgment that
the loss of the employee's services is acceptable in light of the greater good that is
accomplished. The
employer has in effect created a zero tolerance standard for safety violations and the Union
has tacitly
accepted that standard. The Company and the Union also readily acknowledge the
employer's duty under
the Occupational Safety and Health Act to maintain a place of employment "free from
recognized hazards
that are causing or likely to cause death or serious physical harm" to employees.
29 U.S.C.
sec. 654.5(a)1. The State of Illinois also imposes a statutory obligation on employers
to "provide
reasonable protection to the lives, health and safety" of its employees and to furnish a place
of employment
"free from recognized hazards". 829 ILCS 225/3.

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The employer is duty bound to protect the entire workforce and it has chosen to do so
through
strict enforcement of its safety standards. If an employee knowingly violates the rule, even
though the
violation creates no personal benefit to the employee, discharge without prior warning is
contractually
allowed. It is a rule collectively bargained by the parties and one that has been uniformly
enforced by the
employer. In my view it is not the role of a labor arbitrator to second guess a business
judgment made by
the employer with the apparent acquiesce of labor. While the misdeeds here did not cause
injury the
purpose of safety rule enforcement is to avoid injury to the individuals and other employees.
As should be
evident from this decision, while I sympathize with the grievants, I feel compelled to uphold
the discharges.
Accordingly the grievances in this matter are dismissed.

Dated at Madison, Wisconsin, this 20th day of February, 2013.

James R. Scott, Arbitrator

rb

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1 This is not to suggest any type of
waiver or other acquiescence by the Union. Certainly there are a variety of
reasons why the Union may elect not to pursue a grievance.